Patna High Court
Dinesh Kumar vs The State Of Bihar on 8 August, 2024
Author: Harish Kumar
Bench: Harish Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.1026 of 2024
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Dinesh Kumar, S/o Asharfi Baitha @ Asharfi Lal Chaudhary, a permanent
resident of village-Mohanpur, P.S. -Sakra, District- Muzaffarpur, State -Bihar.
... ... Petitioner
Versus
1. The State of Bihar through the Chief Secretary, Government of Bihar, Old
Secretariat, Patna, Bihar, PIN- 800001.
2. Principal Secretary, Department of General Administration, Government of
Bihar, Old Secretariat, Patna, Bihar, PIN- 800001.
... ... Respondents
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Appearance :
For the Petitioner/s : Mr. Rajni Kant Jha, Advocate
For the State : Mr. Yatendra Narayan, AC to GP-16
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CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR
CAV JUDGMENT
Date : 08-08-2024
This Court has heard Mr. Rajni Kant Jha, learned
Advocate for the petitioner and Mr. Yatendra Narayan, learned
Advocate for the State.
2. The petitioner by filing the present writ petition
under Article 226 of the Constitution of India, seeks a direction
upon the respondents to pay all his post retiral dues, including
the amount equivalent to unutilized earned leave and 10% of
pension with interest with effect from the due date to the date of
the actual payment.
3. Shorn of unnecessary details, the brief facts of the
case are that, the petitioner superannuated on 30.06.2015 from
the post of Additional Collector, Darbhanga. However,
Patna High Court CWJC No.1026 of 2024 dt.08-08-2024
2/11
subsequent to the retirement of the petitioner, he has accorded
notional promotion to the post of Joint Secretary w.e.f.
29.06.2010
vide Notification dated 11284 dated 23.08.2018. On
being aggrieved by the inaction of the respondent authorities in
not making payment of post retiral benefits, the petitioner
moved before this Court by filing C.W.J.C. No. 3566 of 2016,
which came to be disposed of on 30.10.2017 with a liberty to
the petitioner to raise his grievance with regard to the non-
payment of post retiral dues, including the payment of leave
encahsment, before the Principal Secretary, Department of
General Administration, Bihar, who shall be obliged to dispose
of such representation by a reasoned and speaking order and
also to ensure payment of admissible dues; the copy of the order
has been marked as Annexure P/2 to the writ petition.
4. In compliance with the order of this Court, the
claim of the petitioner was considered and disposed of vide
order as contained in Memo No. 94 dated 03.01.2018. The
afore-noted order dated 03.01.2018 states that the payment of
10% pension and the amount of leave encashment of the
petitioner have been withheld on account of pendency of
Sursand (Sitamarhi) P.S. Case No. 88 of 2000, Vigilance P.S.
Case No. 30 of 2000 and Vigilance P.S. Case No. 52 of 2002
Patna High Court CWJC No.1026 of 2024 dt.08-08-2024
against him. It was made clear that sanction for releasing the
due amount would be considered after disposal of all the three
criminal cases.
5. It would be worth noted here that the order taking
cognizance in Vigilance P.S. Case No. 30 of 2000 was put to
challenge in Cr. M.P. Case No. 4167 of 2018, which came to be
quashed by the Jharkhand High Court at Ranchi vide order
dated 17.12.2021, the copy of which has been marked as
Annexure P/4 to the writ petition.
6. Similarly, against the order taking cognizance and
the proceeding in connection with Vigilance Case No. 52 of
2002, the petitioner filed Cr. M.P. No. 4168 of 2018, which also
stood quashed by the Jharkhand High Court at Ranchi vide
order dated 22.04.2022, the copy of which has been marked as
Annexure P/5 to the writ petition.
7. So far Sursand (Sitamarhi) P.S. Case No. 88 of
2000 is concerned, till date no charge-sheet has been submitted,
much less against the petitioner.
8. In the aforesaid facts and the subsequent
development, the petitioner again approached to the authority
concerned with a request to ensure payment of his remaining
10% pension, gratuity as well leave encashment.
Patna High Court CWJC No.1026 of 2024 dt.08-08-2024
9. Adverting to the facts discussed, hereinabove,
learned Advocate for the petitioner vigorously contended that
there is no legal justification for withholding of any part of
pension or leave encashment of the petitioner in a situation
where there is no criminal/judicial proceeding is pending against
him. It is next contended that the date on which the petitioner
superannuated, admittedly, rule 43(c) of the Bihar Pension
Rules, 1950 (for short "the Rules, 1950") was in force, which
came into effect on 19.07.2012. Rule 43(c) of the Rules, 1950,
empowers the State Government and its Authorities that in the
event of pending departmental proceeding or judicial
proceeding, in which prosecution has been sanctioned against
the government servant, initiated during the service period and
not concluded till his retirement, the amount of provisional
pension shall be less than the maximum admissible amount of
pension but in no case it shall be less than 90%. Since the
petitioner superannuated on 30.06.2015, his case would
certainly be governed by rule 43(c) of the Rules, 1950. But once
out of three criminal cases, two of them is no more in existence
because of quashing of the order(s) taking cognizance and so far
the Sursand (Sitamarhi) P.S. Case No. 88 of 2000 is concerned,
till date no charge-sheet has been submitted; in such
Patna High Court CWJC No.1026 of 2024 dt.08-08-2024
circumstances, withholding of any part of pension or gratuity as
well as leave encashment is wholly without jurisdiction and not
sustainable in law, is the contention of learned Advocate for the
petitioner. While concluding the submissions, learned Advocate
for the petitioner, further drew the attention of this Court to the
explanation of rule 43 of the Rules, 1950, especially explanation
(b)(ii) thereof, which clearly speaks that judicial proceeding
shall be deemed to have been instituted in the case of criminal
proceeding, on the date on which a complaint is made or a
charge-sheet is submitted to a criminal Court.
10. On the other hand, learned Advocate for the State
countered the submissions advanced on behalf of the petitioner
and referring to the averments made in the counter affidavit
filed on behalf of respondent no.2, contended that from the
record maintained in the department, though it is found that in
respect to proceeding arising out of Vigilance P.S. Case No. 30
of 2000 and Vigilance P.S. Case No. 52 of 2002, it came to be
quashed by the High Court of Jharkhand at Ranchi, but
admittedly till date Sursand (Sitamarhi) P.S. Case No. 88 of
2000 instituted against the petitioner is pending, wherein
prosecution has already been sanctioned vide order contained in
Memo No. 69 dated 30.04.2015 by the Government of Bihar in
Patna High Court CWJC No.1026 of 2024 dt.08-08-2024
the Department of Law, the copy of which has been marked as
Annexure-R/B to the counter affidavit. Reliance has also been
placed on rule 43(c) of the Rules, 1950 that the respondent
authorities is competent enough under the law to withhold part
of pension and gratuity. It is further contended that the Finance
Department vide its Memo No. 4564/F(2) dated 06.07.1993
provided that in case, departmental proceeding or judicial
proceeding has not been disposed of finally against the retired
government employee till his retirement, the amount equivalent
to earned leave can be withheld by the Competent Authority.
11. This Court has anxiously heard learned Advocates
for the respective parties and also perused the materials
available on record.
12. There is no quarrel that the rule 43(c) of the Rules,
1950, empowers the State Government to withhold part of
pension and gratuity, if a government servant is facing
departmental or judicial proceeding, the date on which he
superannuates.
13. In the case in hand, the petitioner superannuated
on 30.06.2015 and, as such, rule 43(c) of the Rules, 1950 would
be attracted as the petitioner was facing judicial proceeding, the
date on which he superannuated. In order to appreciate the
Patna High Court CWJC No.1026 of 2024 dt.08-08-2024
contention of learned Advocate for the petitioner, it would be
proper to quote explanation (a) and (b) of the rule 43 of the
Rules, 1950, which reads as follows:
"Explanation.- For the purposes of the rule.
(a) departmental proceeding shall be deemed to
have been instituted when the charges framed,
against the pensioner are issued to him or, if the
Government servant has been placed under
suspension from an earlier date, on such date; and
(b) judicial proceeding shall be deemed to
have been instituted:-
(i) in the case of criminal proceedings, on
the date on which a complaint is made, or a
charge sheet is submitted, to a criminal
court; and
ii) in the case of civil proceedings, on the
date on which the complaint is presented or,
as the case may be, an application is made,
to a civil court."
14. Bare reading of the afore-noted explanation, two
expressions "complaint" and "charge-sheet" have been used in
order to cover all the contingencies of judicial proceedings. The
final report/charge-sheet connotes conclusion of the investigation
either when the investigation culminated into finding of prima
facie case against the accused persons or to not sent up the
accused persons for trial, in case no material is found. There is
Patna High Court CWJC No.1026 of 2024 dt.08-08-2024
no dispute that the FIR only denotes first information with
regard to some cognizable offence, which set the law into
motion to investigate and proceed in accordance with law and
ensure submission of final report after collecting materials
during course of investigation.
15. The Courts have to look essentially to the words
of a Statute. When the words of a Statute are clear, plain or
unambiguous, i.e. they are reasonably susceptible to only one
meaning, the Courts are bound to give effect to that meaning
irrespective of consequences.
16. Having gone through the explanation (b) of rule
43 of the Rules, 1950, in the opinion of this Court, it gives only
one interpretation that judicial proceeding in case of criminal
matter shall be deemed to have been instituted on the date on
which a complaint is made or charge-sheet is submitted to a
criminal Court.
17. Admittedly, in the case in hand, out of three
criminal cases, the proceeding arising out of Vigilance P.S. Case
No. 30 of 2002 and Vigilance P.S. Case No. 50 of 2002 came to
be quashed by the High Court of Jharkhand at Ranchi. So far the
Sursand (Sitamarhi) P.S. Case No. 88 of 2000 is concerned, till
date charge-sheet has not been submitted, much less against the
Patna High Court CWJC No.1026 of 2024 dt.08-08-2024
petitioner, which fact has also not been confronted by the State
respondent. Thus, this Court has no hesitation to hold that
withholding of 10% pension and gratuity by invoking the
provision of the rule 43(c) of the Rules, 1950 is unsustainable.
18. The respondent authorities are hereby directed to
ensure payment of remaining 10% pension and gratuity to the
petitioner, preferably within a period of eight weeks from the
date of receipt/production of a copy of this order.
19. In view of the aforesaid facts the order dated
05.03.2024 issued by the Deputy Secretary to the Government
in the Department of General Administration, Bihar also came
to be quashed and cancelled to the extent whereby the request of
the petitioner for remaining due pension and gratuity came to be
rejected.
20. So far the payment of leave encashment is
concerned, this field governs by the executive instruction
bearing no. 4564 dated 06.07.1993 issued by the Finance
Department. The Notification clearly speaks that the leave
encashment of a government servant may be withheld till
finalization of departmental inquiry or judicial proceeding in
case where there is chance of recovery of defalcated amount
after culmination of departmental or judicial proceeding.
Patna High Court CWJC No.1026 of 2024 dt.08-08-2024
21. The issue in question pertaining to payment of
leave encashment was also under consideration before the Full
Bench of this Court in the case of Arvind Kumar Singh v.
State of Bihar and Others [2018 (2) PLJR 933], wherein the
learned Full Bench in no uncertain terms held that "so long as
administrative decision to withhold encashment of earned leave
subsist then on the happening of such circumstances as are
contemplated, we see no reason to hold that the leave
encashment can be granted even in cases where the employee at
the time of retirement is facing departmental or judicial
proceeding. It has further been clarified that the government is
well within its power in withholding leave encashment, if the
circumstances required to to so."
22. In the case in hand, prima facie, the charges/allegations
levelled against the petitioner in Sursand (Sitamarhi) P.S. Case No.
88 of 2000 is related to defalcation of government money
leading to institution of the FIR for the offences registered under
Sections 467, 468, 406, 408, 409, 420, 120B as well as 109 of
the Indian Penal Code and Section 7 of the Essential
Commodities Act and the investigation is still pending. Since
the Notification dated 06.07.1993 is an executive instruction
issued by the Finance Department, Government of Bihar, is
Patna High Court CWJC No.1026 of 2024 dt.08-08-2024
independent to the Rules, 1950; the explanation (b) used in rule
43 of the Rules, 1950 would not be applicable.
23. In such circumstances, this Court does not find
any merit to the claim of the petitioner for grant of leave
encashment. Accordingly, to that extent, the prayer of the
petitioner is rejected.
24. The writ petition stands allowed in part to the
extent indicated hereinabove.
(Harish Kumar, J)
rohit/-
AFR/NAFR NAFR
CAV DATE 23-07-2024
Uploading Date 09-08-2024
Transmission Date
